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Court of AppealStruck OutNot stated in judgment

Isaac’s Investment Co Ltd v Archipoint Consulting Architects (Civil Application E797 of 2024) [2025] KECA 1117 (KLR)

Court of Appeal
20 June 2025
3,316 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an attempt to block enforcement of an arbitration award because the company never followed the required appeal steps.

What this practically means

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Executive summary

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The applicant, Isaac's Investment Co. Ltd, moved the Court of Appeal under rule 5(2)(b) for an injunction restraining Archipoint Consulting Architects from executing an arbitral award of Kshs 14,633,937.25, pending an appeal against the High Court (Dr. Mugambi, J.) ruling of 20th September 2024 dismissing the applicant's bid to stay execution and set aside the order of 5th February 2024 recognising the award. The award, rendered in 2019 after a dispute referred to arbitration in 2013, had never been challenged under section 35 of the Arbitration Act. The respondent raised a preliminary objection that the Court lacked jurisdiction, since appeals from section 35 and 36 decisions require leave under the limited Nyutu and Synergy jurisdiction. The Court upheld the objection. It held that there is no automatic right of appeal from High Court decisions under sections 35 and 36, and no section 39 appeal absent a prior agreement. Citing County Government of Kitui v. Power Pump Technical Co. Ltd, Geochem and Kampala International University, it held that leave to invoke the Nyutu and Synergy jurisdiction must come from the Court of Appeal itself, not the High Court, and the applicant had not sought it. Further, following Vio Tech Ltd, having never applied under section 35 to set aside the award, the applicant had no section 35 decision capable of appeal. The constitutional challenge to sections 10 and 35 was settled by Nyutu, and collateral attacks on arbitral proceedings would not be entertained. The application was struck out with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to entertain the application, given the preliminary objection that appeals from decisions under sections 35, 36 and 37 of the Arbitration Act require leave of the Court of Appeal under the Nyutu and Synergy parameters
  2. 2.Whether the applicant has an arguable appeal warranting an injunction under rule 5(2)(b) to restrain execution of the arbitral award
  3. 3.Whether the appeal would be rendered nugatory if the injunction is not granted

Key legal issues

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01

Whether the applicant could invoke the Nyutu and Synergy jurisdiction without leave of the Court of Appeal

Holding

Leave must be obtained from the Court of Appeal, not the High Court; a general grant of leave by the High Court does not suffice.

Reasoning

The Supreme Court in Nyutu, Synergy and Geochem recognised a limited, exceptional jurisdiction in the Court of Appeal to hear section 35 appeals only in the clearest of cases of manifest injustice. In County Government of Kitui v. Power Pump Technical Co. Ltd, this Court held that whether a case falls within that jurisdiction is decided by the Court of Appeal in limine. The Supreme Court in Kampala International University reiterated that the intended appellant must first seek and obtain leave from the Court of Appeal. The applicant neither sought nor obtained such leave from this Court.

p. 5
02

Whether a party who never applied under section 35 to set aside the award can appeal

Holding

No. Without a section 35 application, there is no section 35 decision of the High Court that can be appealed under the Nyutu and Synergy jurisdiction.

Reasoning

The applicant never applied within the prescribed time, or at all, to set aside the award under section 35; its later application to set aside the order adopting the award was dismissed. Following Vio Tech Ltd v. Upperhill Chambers and Kampala International University, an appeal under the exceptional jurisdiction can only lie where the High Court, in setting aside an award, stepped outside the grounds in section 35 and made a decision so grave as to close the door of justice. No such decision exists here.

p. 6
03

Whether the pending constitutional petition and the alleged denial of access to justice establish arguability

Holding

No. The Supreme Court in Nyutu settled that sections 10 and 35 of the Arbitration Act are not unconstitutional limitations on access to justice, and courts will not entertain collateral constitutional attacks on arbitral proceedings.

Reasoning

In Nyutu, the Supreme Court expressly rejected the plea to declare sections 10 and 35 of the Arbitration Act unconstitutional, holding that statutory limitations on appeals do not necessarily infringe the right of access to justice. Arbitration is constitutionally underpinned; the Arbitration Act is a complete code; and judicial intervention is strictly limited to instances provided by the Act. The applicant's constitutional petition was therefore a collateral attack that could not found an arguable appeal.

p. 6

Legal principles established

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  • Leave to appeal to the Court of Appeal under the limited Nyutu and Synergy jurisdiction arising from a section 35 Arbitration Act decision must be sought and obtained from the Court of Appeal itself, not the High Court, and the Court of Appeal decides in limine whether the threshold is met.
  • A party who did not apply to set aside an arbitral award under section 35 of the Arbitration Act cannot invoke the limited and circumscribed Nyutu and Synergy jurisdiction, since there is no section 35 decision of the High Court capable of being appealed.
  • There is no automatic right of appeal to the Court of Appeal from High Court decisions under sections 35 and 36 of the Arbitration Act, and no appeal under section 39 absent a prior agreement conferring such a right.
  • Courts will not entertain collateral attacks on arbitral proceedings through constitutional petitions raising questions already settled by the Supreme Court, as the constitutionality of sections 10 and 35 of the Arbitration Act was settled in Nyutu.

Court orders

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  1. 1.The applicant's application for injunction pending appeal was struck out
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; the court determined it lacked a proper basis to entertain the application under the limited Nyutu/Synergy jurisdiction under section 35 of the Arbitration Act

Relief refused

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Injunction to restrain the respondent from executing the arbitral award pending appeal

The application was fatally flawed: the applicant never obtained leave of the Court of Appeal to invoke the Nyutu and Synergy jurisdiction, and never applied under section 35 of the Arbitration Act to set aside the award, so there is no appeal capable of being protected

p. 5

Costs

The application was struck out with costs to the respondent: "This application has absolutely no merit and the same is hereby struck out with costs to the respondent. It is so ordered."

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This application has absolutely no merit and the same is hereby struck out with costs to the respondent. It is so ordered.
p. 6Final orders - striking out of the application with costs
Without having applied to set aside the arbitral award, there is no decision of the High Court under section 35 of the Act, that can be appealed to this Court.
p. 6Requirement of a section 35 application as a precondition to the Nyutu/Synergy jurisdiction
as held in County Government of Kitui v. Power Pump Technical Co. Ltd. (supra), that leave must be obtained from this Court and not from the High Court.
p. 5Leave for arbitration appeals lies with the Court of Appeal
That jurisdiction is invoked in the clearest of cases for purposes of averting a palpable injustice.
p. 3Nature of the limited Nyutu/Synergy appellate jurisdiction

Issues in the judgment

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minor

The applicant's counsel and the judgment inconsistently date the High Court ruling dismissing the setting-aside application; the judgment states 20th September 2024 in paragraph 2 but refers to 24th September 2024 when describing the grant of 30 days to appeal.

minor

The Supreme Court citation of the Singapore case as quoted contains an apparent typographical year '[201]' for what would be 2015, though this appears within quoted material.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Isaac’s Investment Co Ltd v Archipoint Consulting Architects (Civil Application E797 of 2024) [2025] KECA 1117 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1117/eng@2025-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.